Legal Battle Over Medication Abortion in Wisconsin Drags On

On Thursday, a state judge heard arguments in a case challenging a 2012 law that severely restricts medication abortion and exposes doctors to felony prosecution for failure to comply. (Gavel pills via Shutterstock)

On Thursday, a Wisconsin state court judge heard arguments in a lawsuit challenging Wisconsin Act 217, the “Coercive and Webcam Abortion Prevention Act.”

Passed in 2012, Act 217 heavily restricts medication abortion in the state and subjects doctors to felonies for failure to comply. The law requires any physician prescribing medication for an abortion to first perform a physical exam on the patient and to be in the room when the drugs are given to the patient. The law also places additional requirements on doctors to determine whether the woman’s consent to the abortion procedure is voluntary or if she is being “coerced” into the procedure.

In December 2012, Planned Parenthood of Wisconsin challenged the law in federal court, arguing it was unconstitutionally vague and so badly drafted compliance was impossible. According to the lawsuit, because the law does not spell out what a physician must do to comply and avoid criminal prosecution, it violates due process protections. In February 2013, attorneys for Planned Parenthood of Wisconsin and lawyers for the state reached a settlement in the lawsuit that spelled out how the challenged portions of the law are to be interpreted. The agreement clarifies that a doctor must be present only when an abortion drug is dispensed, not that a doctor must be present when a patient takes the drug. As written, the law stated that a doctor must be present when a patient is “given” medication, with no further guidance.

Under the terms of the agreement, now a doctor who isn’t present when the drug is taken does not violate the law and risk civil and criminal penalties. That means that doctors may still provide a two-pill abortion procedure and let the patient take the second pill on her own, away from the doctor’s office, rather than return to the office to take the second pill in the presence of the physician. The settlement also clarifies the steps a doctor must take to comply with the portion of the law that requires doctors screen for “abortion coercion,” and states that a doctor’s determination that a patient is voluntarily consenting to the abortion is governed by a “good faith” standard developed in prior case law. It’s a standard that respects doctors’ judgment and should return at least some of the privacy to the doctor-patient relationship.

But U.S. District Judge Barbara Crabb, who was assigned to the case, would not accept the settlement because she said she lacked federal jurisdiction to approve it. With terms of a settlement reached but no way to enforce it, Planned Parenthood withdrew its federal lawsuit and refiled its claim in state court.

In April 2013, Dane County Circuit Judge Richard Niess issued a temporary injunction, which blocked the law from being enforced while the state lawsuit was pending. Planned Parenthood later restored access to nonsurgical abortions in Milwaukee, Madison, and Appleton, saying that under the terms of the temporary injunction the compliance provisions of the law were clear enough to satisfy provider concerns that they could resume providing medication abortions without fear of criminal prosecution.

According to reports, even though the attorneys for the state have agreed to these terms, they are resisting a court order and have asked Judge Niess not to make a ruling in the case. Attorneys for the state argue that the settlement terms are already enforceable, would bind prosecutors in the future, and could be used as a defense by any doctor who is prosecuted in the future. But, attorneys for Planned Parenthood say those assurances are not enough, that a settlement agreement reached in federal court is not binding in a state court action, and a court order clearly laying out the terms is required to protect doctors from possible prosecution.

Judge Niess said he would rule within 90 days. He also has the option of granting himself an additional 90-day extension if he believes he needs more time to rule.